On Appeal from the United States District Court for the District of New Jersey-Newark, D.C. Crim. No. 85-00355-01
Before: HIGGINBOTHAM and BECKER, Circuit Judges, and DUMBAULD, District Judge.*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This is an appeal from a judgment of conviction against appellant, Richard Johnson. Before trial, appellant moved to suppress oral and written confessions he made to agents of the United States Secret Service who were investigating the disappearance of a total of $20,000 from two armored-car shipments. The district court denied defendant's motion in an opinion rendered from the bench on March 19, 1986. Also before trial, appellant was warned that exploration of the circumstances of a certain polygraph examination might result in admission of evidence of the examination for purposes of rebuttal. Two days into the trial, the prosecution provided the defense copies of two reports which indicated that appellant's fingerprints were not found on certain equipment. Although appellant made use of the reports, he was subsequently convicted on two counts of bank robbery in violation of 18 U.S.C. 2113(b) (1982) and sentenced. Because we find that the district court's denial of appellant's motion did not constitute reversible error, and because we find that the district court's other allegedly erroneous actions were proper, we will affirm the the district court's judgment of conviction. Because the district court did not, however, make the factual findings necessary to impose appellant's sentence, we will vacate that sentence and remand the case to the district court for further fact-finding.
The Coin Depot ("Coin Depot") of Elizabeth, New Jersey is an armored car carrier company. On August 13, 1985, Coin Depot carried several sacks of money from First Fidelity Bank of Union City, New Jersey to the Federal Reserve Bank ("Federal Reserve"). Later, on August 27, 1985, Coin Depot carried several sacks of money from First Jersey Bank of Jersey City, New Jersey to the Federal Reserve. Appellant Richard Johnson and another Coin Depot employee, Douglas Amidon, acted as guards for both shipments. After receiving the shipments, the Federal Reserve reported to Coin Depot that $10,000 was missing from each. In response to the Federal Reserve's report, the United States Secret Service ("Secret Service") conducted an investigation. As a part of the investigation, Special Agent Timothy H. Johnson of the Secret Service questioned several bank employees about the missing funds. Special Agent Johnson also spoke to appellant Richard Johnson about the funds at Coin Depot offices on Thursday, September 12, 1985. At that time, appellant Johnson acknowledged that he had been a member of the August 13, 1985 and August 27, 1985 truck crews but denied any involvement in the alleged thefts. Appellant Johnson also acceded to Special Agent Johnson's request that appellant submit to a polygraph examination the following week.
On September 16, 1985, Appellant Johnson went to the Secret Service office in East Orange, New Jersey. There, appellant Johnson met with Special Agent Johnson and Special Agent Thomas Grupski. Grupski provided appellant Johnson with two forms. The first set forth Miranda warnings and contained statements that the suspect understood and freely waived his rights.*fn1 The second contained statements that the suspect freely submitted to a polygraph examination.*fn2 The words "Polygraph Examination" were printed at the top of each form in bold type approximately twice as large as the type used in the remainder of the form. Agent Grupski read the first form and then the second aloud to appellant Johnson, asking after each reading if appellant understood the contents. Appellant Johnson each time stated he did, signing the firm form and then the second. Special Agent Johnson witnessed the signing of both forms.
Grupski then administered the polygraph examination. Special Agent Johnson moved to an adjacent room from which he and another agent, Craig Carlson, observed appellant, with appellant's knowledge, through a one-way mirror. Grupski posed two questions to appellant: (1) "Did you take any of the money from any of those Fed bags?" and (2) "Do you know for sure who took any of the money from any of those Fed bags?" Appellant Johnson responded in the negative to both questions. Grupski then stated to appellant that the test indicated deception. Appellant denied his involvement and expressed amazement at the test result. Agent Grupski then repeatedly asked appellant during the next fifteen minutes whether appellant had taken the money. Appellant eventually confessed to stealing the money.
After this initial oral confession, Grupski left appellant, who was taken to an adjacent room by Special Agent Johnson. Special Agent Johnson presented appellant with another form which, like the first form appellant signed, set forth Miranda warnings.*fn3 Unlike the first two forms, however, the third form made no mention of a polygraph examination. Appellant signed the form and then subsequently wrote and signed confession with Special Agent Johnson's assistance. Appellant later led Special Agent Johnson to appellant's home and produced $6,000 in cash for the agent.
Before trial, appellant sought to suppress evidence of his confessions on grounds that he was not given adequate Miranda warnings and that the confessions were not voluntary. In an opinion dated March 19, 1986, the district court found that the Secret Service's Miranda warnings to appellant were adequate and that appellant's confessions were voluntary. The court therefore denied appellant's motion. Also before trial, the government stated its intention not to introduce evidence of the polygraph examination. The district court stated, however, that if appellant attempted to demonstrate that the confessions were coerced by introducing evidence of the circumstances of the examination, the government would be permitted to rebut appellant's assertion by introduction of evidence concerning the circumstances of the exam. See App. at A-77-86. Subsequently, on the trial's first day, the government acquired two fingerprint reports. See id. at A-120-21. The government provided the defense with copies of the reports on the trial's second day, which preceded cross-examination of all government witnesses. Later, appellant's written confession and testimony concerning appellant's oral confession were introduced as evidence.
Appellant was thereafter convicted on both counts and received a sentence of five years' imprisonment and $10,000 restitution on the first count and five years' probation and $4,000 restitution on the second, the restitution to be paid to the Coin Depot. This appeal followed.
Appellant asserts four claims. First, appellant contends that he did not voluntarily, knowingly and intelligently waive his Miranda rights prior to his oral and written confessions. Second, appellant asserts that the district court's statement that it would permit introduction of rebuttal evidence if appellant sought to use the circumstances of the polygraph examination to show that the confessions were coerced impermissibly restricted appellant's ability to cross-examine witnesses and thus violated the sixth amendment. Third, appellant asserts that the government's failure to provide the fingerprint reports prior to trial denied him due process under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 ...